Vacated by Supreme Court, June 21, 2010

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4055

UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
RODNEY ANTON WILLIAMSON,
Defendant Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:06-cr-00474-NCT-1)

Submitted:

July 9, 2009

Decided:

July 20, 2009

Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

J. David James, SMITH JAMES ROWLETT & COHEN, L.L.P., Greensboro,

North Carolina, for Appellant.
Anna Mills Wagoner, United
States Attorney, Sandra J. Hairston, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Rodney

Anton

Williamson

was

indicted,

along

with

others, and charged with one count of conspiracy to distribute

five kilograms or more of a mixture and substance containing a
detectable amount of cocaine, in violation of 21 U.S.C. 846
(2006).

The sealed indictment was issued December 18, 2006, and

a warrant for Williamsons arrest was issued the following day.

In January 2007, a confidential informant, acting in concert
with law enforcement agents, met with Williamson while wearing a
recording and transmitting device.

At the conclusion of the

meeting, law enforcement attempted to arrest Williamson on the

outstanding

warrant;

however,

he

successfully

evaded

arrest.

Williamson was eventually apprehended and arraigned on

June 12, 2007, and received court-appointed counsel.
Williamson

retained

following week.

counsel

who

entered

his

However,

appearance

the

Williamsons case was called for jury selection

on August 13, 2007.

On that date, Williamson informed the court

that, during the preceding weekend, he had retained different

counsel and wanted his first retained attorney dismissed.

After

substitute retained counsel indicated that he was prepared to

try

Williamsons

case

two

days

after

jury

selection,

the

district court granted Williamsons motion to dismiss his first

retained counsel.

At the conclusion of his jury trial, Williamson was

convicted of the sole count in the indictment.

Williamson was

subsequently sentenced to life imprisonment.

On appeal, Williamson first claims the district court
erred

in

admitting

the

confidential informant.

recording

of

his

meeting

with

the

Williamsons claim is raised for the

first time on appeal and is therefore reviewed for plain error.

Plain error requires Williamson to establish that: (1) there was
error; (2) the error was plain; and (3) the error affected his
substantial rights.
(1993).
decision

United States v. Olano, 507 U.S. 725, 732

Even if he makes this showing, Rule 52(b) leaves the

to

correct

the

forfeited

error

within

the

sound

discretion of the court of appeals, and the court should not

exercise that discretion unless the error seriously affect[s]
the

fairness,

proceedings.

integrity,

or

public

reputation

of

judicial

Id. (quoting United States v. Young, 470 U.S. 1,

15 (1985) (internal quotations omitted)).

Williamson fails to

establish that error occurred or that any error was plain.

Williamson
had

been

issued

argues

against

that,
him,

because

introduction

sealed
of

his

indictment
recorded

conversation with an informant acting at the direction of law

enforcement officers violated his right to counsel under the
Sixth Amendment.

In support for his argument, Williamson relies

principally on Massiah v. United States, 377 U.S. 201 (1964),

3

and Brewer v. Williams, 430 U.S. 387 (1986).

Williamson cites

Brewer for the proposition that [w]hatever else it may mean,

the

right

to

counsel

granted

by

the

Sixth

and

Fourteenth

Amendments means at least that a person is entitled to the help

of a lawyer at or after the time that judicial proceedings have
been initiated against him whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment.
Brewer, 430 U.S. at 398 (quoting Kirby v. Illinois, 406 U.S. 682
(1972)).
However,

Williamsons

selective

fails to support his position.

quotation

of

Brewer

The State in Brewer did not

contest the fact that judicial proceedings had begun against the
defendant when he was questioned by the police without counsel
present.

Brewer, 430 U.S. at 399.

precisely

when

judicial

Therefore, the question of

proceedings

defendant was not before the Court.

are

instituted

against

See Michigan v. Jackson,

475 U.S. 625, 629 (1986) (stating that the arraignment signals
the initiation of adversary judicial proceedings and thus the
attachment of the Sixth Amendment right to the assistance of
counsel) (internal quotations omitted).
Massiah

are

factually

distinct

from

Moreover, Brewer and

Williamsons

case

as

officers in both cases interrogated the defendants after their

respective arraignments.

Brewer, 430 U.S. at 390-92; Massiah,

377 U.S. at 202.

4

In contrast, at the time of Williamsons conversation

with the informant, all that had occurred was the issuance of a
sealed indictment and arrest warrant.

This court has held that

the Sixth Amendment right to counsel does not attach even after
a defendant has been arrested based on the filing of a criminal
complaint nor is the right triggered during the period between a
defendants

arrest

and

his

arraignment.

United

States

v.

Alvarado, 440 F.3d 191, 200 (4th Cir. 2006); United States v.
DAnjou, 16 F.3d 604, 608 (4th Cir. 1994).

Accordingly, in

light of Alvarado and DAnjou, Williamson fails to demonstrate

any error by the district court in admitting the recording of
his conversation with the informant or that any such error was
plain or clear under current law.

United States v. Brewer,

1 F.3d 1430, 1435 (4th Cir. 1993).

Williamson
abused

its

next

discretion

by

contends

that

requiring

the

his

district

substitute

court

retained

counsel to go forward with the trial two days after he was

retained

in

withdraw

his

exchange
first

for

retained

granting
counsel.

Williamsons
Williamson

motion

to

appears

to

allege that the district court abused its discretion by denying

his implicit motion for a continuance.
without merit.

Williamsons argument is

First, both attorneys expressed to the district

court that they were prepared to try Williamsons case two days
after jury selection.

Additionally, the facts in the record,

5

including

that

Williamson

did

not

request

substitute

counsel

until the day of jury selection, indicate simply an eleventh

hour attempt at delay by a defendant wishing to avoid having to
face a potential life sentence.
did

not

counsel

err

in

granting

and

denying

Therefore, the district court

Williamsons

Williamsons

motion

implicit

to

substitute

motion

for

trial

counsel

continuance.
Finally,
rendered

Williamson

ineffective

suggests

assistance.

his

Claims

of

ineffective

assistance of counsel are not cognizable on direct appeal unless

the

record

conclusively

ineffective assistance.
233, 239 (4th Cir. 2006).

establishes

that

counsel

provided

United States v. Baldovinos, 434 F.3d

The record here does not conclusively

establish trial counsels ineffective assistance.

Accordingly, we deny Williamsons motion to file a pro
se supplemental brief and affirm the judgment of the district
court.

We dispense with oral argument as the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.
AFFIRMED